Delhi District Court
Chander Krishan Gupta vs . Brij Krishan Gupta on 30 May, 2014
Suit no. 170/14 Chander Krishan Gupta vs. Brij Krishan Gupta 30.05.2014 Present: None. 1.
Vide this order, I shall dispose of the submissions of Ld. Counsel for the parties regarding whether issues are required to be framed and for adjudication/ investigation in regard to Will dated 20.03.2003, Codicil dated 26.05.2004 and Trust namely "Nitin and Namit Benefit Trust".
2. It is on record that Ld. Counsel for defendant no. 2 to 4 filed proposed issues on 11.04.2014 which are read as under:-
i. Whether the deceased Smt. Vimla Devi had validly executed the Codicil dated 26.05.2004 (as propounded by defendant-1(b) to (d), while in sound disposing mind and of her own free will? (OPD-1) ii. If the issue no. 1 is decided in favour of the defendant no. 1, whether Nitin & Namit Benefit Trust is entitled to succeed to the Estate of Smt. Vimla Devi? If so, its effect? (OPD-1) iii. Whether the Nitin & Namit Benefit Trust so created could be dissolved by Shviraj Krishan Gupta, Smt. Neena Jain and Shri Rakesh Jain on 12.03.2013 as stated and if so defendant no. 1(b) Shivraj succeed to the Estate of Smt. Vimla Devi? (OPD-1) iv. Whether defendants no. 2 to 4 are entitled to any mesne profits from the defendant no. 1? If so, at what rate and for what period? (OPD 2-4) Suit no. 170/14 Chander Krishan Gupta vs. Brij Krishan Gupta 1 of 9 v. Whether defendants no. 2 to 4 are entitled to interest on mesne profits? If so, at what rate and for what period? (OPD 2-4) vi. Relief.
3. Ld. Counsel for LR of defendant no. 1 contended that defendant no.
1(b), 1(c), 1(d) are the natural legal heirs of Late Smt. Vimla Devi the defendant no. 1(a) and they have no objection whatsoever to the Will dated 20.03.2003 and Codicil dated 26.05.2004 and this fact has already been recorded by the Hon'ble High Court in its order dated 04.04.2007. Ld. Counsel further contended that proposed issues presented by Ld. Counsel for defendant no. 2 to 4 are only a means to delay the release of the share of sale proceeds belonging exclusively to defendant no. 1(a) so there is no question of framing of issue on this aspect and thus plaintiff or defendant no. 2 to 4 have no locus standi whatsoever to propose any issue in respect aforesaid Will and Codicil of defendant no. 1(a) and further proposed issue no. 3 is also frivolous as it is not the case of defendant no. 2 to 4 that they are the successor of defendant no. 1(a).
4. Ld. Counsel for LR of defendant no. 1 further contended regarding proposed issues no. 4 to 6 that defendant no. 2 to 4 are in exclusively possession of joint properties owned by defendant no. 1(b) to 1(d) that is to say that defendant no. 2 to 4 are in possession of prime location of Delhi i.e. valuable residential property measuring about 1500 sq. yards situated at 3 Pusa Road, New Delhi. Also, defendant no. 2 is in possession of major part of a valuable commercial property at 37 Main Suit no. 170/14 Chander Krishan Gupta vs. Brij Krishan Gupta 2 of 9 Road, Darya Ganj, Delhi besides family jewellery worth of several crores. Ld. Counsel further contended that on the demise of defendant no. 1 in 1998, defendant no. 2 to 4 in collusion and with the active participation of plaintiff came to the suit premises on 30.09.1998 and forcibly occupied another major part of the suit property and that is why the key to the portions of the suit premises in occupation of the plaintiff and defendant no. 2 to 4 were being handed over to the counsel for the auction purchaser by defendant no. 2 to 4 and therefore they are not required for any mesne profit/damages and thus no issues are required to be framed on this aspect also.
5. Further, Ld. Counsel for LR of defendant no. 1 contended that issues are raised regarding the entitlement of trust or regarding genuineness of the Will & codicil which are not required to be framed as codicil, Will and trust has not been challenged by the LR of executant. Ld. Counsel further contented that trustees would have the right to sell, dispose or convert any of the assets of the Trust in any manner. Ld. Counsel further contended that the tenure of the "Nitin and Namit Benefit Trust"
was to be of 20 years upto 26.05.2024 but trustees were empowered to dissolve the Trust prior to the assigned date in terms of para 2 of the Codicil dated 26.05.2004 so trustee i.e. defendant no. 1(b) dissolved the trust accordingly neither any issues are to be framed nor is there any lawful cause to withhold the money belonging to defendant no. 1(a) or her beneficiaries.
6. On the contrary, Ld. Counsel for defendant no. 2 to 4 contended that defendant no. 2 filed counter claim alongwith rejoinder to the written Suit no. 170/14 Chander Krishan Gupta vs. Brij Krishan Gupta 3 of 9 statement of defendant no. 1 in April, 1980 which was replied by defendant no. 1 in May, 1980. However, no issue in that regard was framed and it appears that counter claim went unnoticed hence, counter claim of defendant no. 2 needs to be adjudicated and decided. He further contended that counter claim has been correctly valued and proper court fees will be paid as and when mense profit determined. Ld. Counsel for defendant no. 2 to 4 further contended that instant case being of partition suit wherein parties are inter-changeable personalities and therefore defendant no. 2 made counter claim against defendant no. 1 in terms of Order VIII Rule 6(A) r/w Order VIII Rule 9 CPC as defendant no. 1 was admittedly in possession of 3/4th share of the suit property and he delayed the auction for 30 years after passing the preliminary decree which entitles him to recover mense profit from his estate.
7. Ld. Counsel for defendant no. 2 to 4 further contended that to delay the proceedings and sale of suit property legal representative of defendant no. 1 Smt. Vimla Devi propounded her alleged Will dated 20.03.2003 and alleged Codicil dated 26.05.2004 and formed trust in the name of "Nitin & Namit Benefit Trust" which was dissolved and therefore while dealing with the issue of Will/Codicil, Hon'ble High Court held in order dated 04.04.2004 that all the problems involved herein must be investigated and discussed down to the ground. Thereafter on the sale of suit property the share of defendant no. 1(a) was retained in term of order dated 04.04.2007 so as to matter will be investigated/adjudicated as per direction of Hon'ble High Court and therefore all the proposed issues are required to be framed for complete adjudication of the Suit no. 170/14 Chander Krishan Gupta vs. Brij Krishan Gupta 4 of 9 counter claim of the defendant. In support of his arguments, ld. counsel for defendant relied upon Harcharan Singh Hazooria vs. Kulwant Singh Hazooria & Ors. IA 1309/13 in CS (OS) No. 2244/2008 dated 01.10.2013.
8. I have heard the rival contention of ld. counsel for parties and perused the material placed on record and the written arguments filed by ld. counsel for the parties.
9. It is admitted that plaintiff Sh. Chander Krishan Gupta filed instant suit for partition of property bearing no. 38, Amrita Shergill in the year 1980 against Sh. Brij Bhushan Gupta, Sh. Avtar Krishan Gupta, Sh. Balraj Kumar and Mrs. Anjali Gupta (hereinafter called defendant no. 1, 2, 3 and 4). It is also admitted that preliminary decree was passed on 08.05.1990 declaring plaintiff, defendant no. 1 and 2 entitled to 1/4th share each in suit property whereas defendant no. 3 and 4 were held entitled to as 1/8th share each in suit property. The suit property was later on put on auction and sale of same was confirmed. It is on record that defendant no. 1 during course of proceedings expired and his LR's i.e. Smt. Vimla Devi, Sh. Shivraj Krishan Gupta, Mrs. Neena Jain and Mrs. Neera Goel brought on record as defendant no. 1(a), 1(b), 1(c) and 1(d) respectively. Subsequently LR of defendant no. 1 Smt. Vimla Devi also expired so her LRs i.e. defendant no. 1(b), 1(c), 1(d) & trust namely "Nitin and Namit Benefit Trust" impleaded. It is also admitted fact that suit property was put to auction and finally sold and sale proceed was distributed according to their share among the plaintiff and defendants except "Nitin and Namit Benefit Trust, the LR of Smt. Vimla Devi the Suit no. 170/14 Chander Krishan Gupta vs. Brij Krishan Gupta 5 of 9 defendant no. 1(a) whose share was retained vide order dated 17.07.2013. Later on defendant no. 1(b) to (d) filed an application for release of share of "Nitin & Namit Benefit Trust" but the said application was dismissed vide order dated 10.02.2014.
10.It is not in dispute that defendant no. 2 filed the counter claim alongwith rejoinder to the written statement of defendant no. 1. It is also admitted that the defendant no. 1 filed reply to the counter claim. It is admitted fact that no issue was framed in this matter and with the consent of the parties preliminary decree was passed vide order dated 08.05.1980. In view of this, it is clear that Will and Codicil dated 20.03.2003 and 26.05.2004 respectively was executed by defendant no. 1(a) much after the filing of counter claim. It is also admitted that neither plaintiff nor defendant no. 2, 3 and 4 claimed any share in the property of defendant no. 1(a) so the only requirement is to adjudicate on counter claim of defendant no. 2 which he filed against the plaintiff and defendant no. 1. LR's of defendant no. 1 claimed that defendant no. 2 to 4 are in the exclusive possession of their valuable properties so no issue is required to be framed regarding mense profit/damages. Admittedly such fact has not disclosed by the defendant no. 1 in his reply to the counter claim so under these circumstances trail regarding damages/mense profit is received.
11.As far as proposed issues no. 1, 2 and 3 are concerned, Ld. Counsel for defendant no. 2 contended that defendant no. 1(a) propounded the alleged Will and Codicil and created a trust just to delay the proceeding and sale of suit property, if this contention of defendant no. 2 is Suit no. 170/14 Chander Krishan Gupta vs. Brij Krishan Gupta 6 of 9 accepted, then defendant no. 2 admitted the execution of Will dated 20.03.2003 and Codicil dated 26.05.2004. It is also admitted fact that the defendant no. 1 (b), (c) and (d) are natural legal heirs of defendant no. 1(a) and they have no objection in regard to Will and Codicil of Smt. Vimla Devi whereas plaintiff, defendant no. 2, 3 and 4 have no concerned with the Will and Codicil of Smt. Vimla Devi. So in view of this, it is clear that prior to her death, Smt. Vimla Devi executed a Will on 20.03.2003 and Codicil on 26.05.2004 and a trust namely "Nitin & Namit Benefit Trust" was created. The case law Harcharan Singh Hazooria is not applicable in the present facts and circumstances of the case as in that case plaintiff and defendants are the natural legal heir of executant of Will.
12.The beneficiary of "Nitin and Namit Benefit Trust" are the grand son of defendant no. 1(a) i.e. Nitin and Namit. The Codicil has the clause that the trustee would have the right to sale, dispose or convert any of the asset of the trust in any manner without any restriction. The tenure of the trust was to be of 20 years. However trustee empowered to dissolve the trust prior to the assigned date. So in term of this clause trustee, defendant no. 1(b) dissolve the "Nitin and Namit Benefit Trust".
13.It is pertinent that "Nitin and Namit Benefit Trust" was impleaded as defendant being LR of Smt. Vimla Devi who was one of LR of defendant no. 1. It is also pertinent that if the trust was not impleaded as LR of Smt. Vimla Devi then the estate/share of Smt. Vimla Devi was devolved among her natural LRs i.e. between her children the defendant no. 1(b) to (d) but Smt. Vimla Devi during her lifetime made a trust for benefit of Suit no. 170/14 Chander Krishan Gupta vs. Brij Krishan Gupta 7 of 9 her grandson Nitin & Namit so the property of trust is required to be gone to its beneficiary who otherwise made a statement that sale proceed was released to the defendant no. 1(b). So in view of this discussion the proposed issue no. 1, 2 and 3 are not required any way to be framed particularly when its finding are not relevant to decide the counter claim of defendant no. 2.
14.In view of aforesaid discussion, I am of considered opinion that following issues are required to be framed, same are as under:
i. Whether defendants no. 2 is entitled to any mesne profits from plaintiff and defendant no. 1? If so, at what rate and for what period? (OPD 2) ii. Whether defendants no. 2 is entitled to interest on mesne profits?
If so, at what rate and for what period? (OPD 2) iii. Relief.
15.Now, in view of aforesaid discussion, it is clear that the adjudication which is required in the instant case is only in regard to the counter claim of defendant no. 2 whereas no adjudication is required regarding Will, Codicil and Trust of deceased defendant no. 1(b). So under these circumstances, I am of considered opinion that the share of LR of defendant no. 1(a) the trust namely "Nitin & Namit Benefit Trust" is not required to be retained further. The trust has already been dissolved and its beneficiaries both Namit and Nitin gave their statement in Court on 02.08.2013 and 12.11.2013 respectively to the effect that they are the beneficiary of the trust and they have no objection to the release of with held money to his father/the defendant no. 1(b). It is also on record Suit no. 170/14 Chander Krishan Gupta vs. Brij Krishan Gupta 8 of 9 that defendant no. 1(c) Ms. Neena Jain and defendant no. 1(d) Ms. Neera Goel also made their statement before the Court that they do not claim their share in the sale proceed of suit property and their share may be released to defendant no. 1 (b) so in view of aforesaid discussion the amount retained being share of trust "Nitin & Namit Benefit Trust" be released to the defendant no. 1(b) on furnishing his affidavit that he will liable to pay/clear the debt or any other liability of deceased defendant no. 1(a) who inherited the property being legal heir of defendant no. 1.
16.Put up for evidence of counter claimant/ defendant no. 2 for 28.07.2014.
(Ravinder Singh-1) ADJ-08(Central)/THC Delhi/30.05.2014 Suit no. 170/14 Chander Krishan Gupta vs. Brij Krishan Gupta 9 of 9